[Community-Discuss] Comments from GovCom Communique

Tue May 17 17:13:28 UTC 2022

Apologies… I got references crossed up and post the following correction to my previous message…

The problem, Paul, is that the bylaws conflict with themselves.

Under the present circumstances it is literally impossible to follow the strict letter of the bylaws because they do, indeed call for three year terms without allowing for the election of partial year terms (unnumbered paragraph after 13.5 and before 13.6). However, they also insist on the maintenance of the sequentiality of terms (13.6). However, they do not (as the gov com has erroneously suggested) allow for simply leaving the seat vacant. Indeed, 13.1 requires the board to call a meeting of members for the purpose of appointing directors where vacancies occur as a result of any of the following:
	i.	Term expiration
	ii.	Removal or resignation under Article 14
	iii.	Disqualification of a director under Article 13.10
	iv.	Death
	v.	Filling of a casual vacancy in terms of article 13.14

However, as you point out, they also clearly call for elections and do not allow the board to appoint directors for arbitrary terms.

Finally, we have section 13.14 which allows the board to fill casual vacancies as a result of:

14.1(ii)	Resignation
14.1(iii)	Removal by 2/3rds vote of other directors
14.1(iv)	Ceases to be a director pursuant to section 139 of the companies act

	Summarizing section 139 (https://www.mcci.org/media/35749/the-companies-act-2001.pdf <https://www.mcci.org/media/35749/the-companies-act-2001.pdf>) it covers:
		(a) Resignation
		(b) Removal from office by board act or legal process
		(c) Disqualification by law (Section 133)
			(a) under 18
			(b) subject to section 138(4..7) over 70 (if a public company)
			(c) undischarged bankrupt
			(d, e) legally prohibited from being a director
			(f) not a natural person
			(g) adjudged to be of unsound mind
			(h) no longer qualifies under the company’s constitution)
		(d) becomes disqualified pursuant to subsection (4)
			(somewhat difficult to interpret as subsection 4 reads:
Notwithstanding the vacation of office, a person who held office as a director shall remain liable under the provisions of this Act that impose liabilities on directors in relation to acts and omissions and decisions made while that person was a director. 

			And has nothing to do with eligibility to hold the office.
		(e) dies
		(f) otherwise vacates office in accordance with the constitution of the company

So, as you can see, the Gov Com has chosen to follow all the bylaws except section 13.1. I’ve suggested a way forward that is a minor technical violation of the unnumbered paragraph between sections 13.5 and 13.6 in order to allow full compliance with 13.1 and 13.6. Further, virtually every other organization that has a staggered term structure as described here operates in the manner I have suggested with regard to electing persons to the remainder of terms to preserve the sequence of elections thereafter.

This problem is compounded when the nominating committee goes about eliminating valid candidates and paring the selection down to just one candidate for a seat, thus effectively appointing that candidate rather than having an actual election. Even with just two candidates to choose from for a given office, this is a very limited choice and it allows the nominating committee and the board to stack the deck in the electoral process.

Apologies also for my comment on the nature of the injunction. Apparently only AFRINIC is allowed to disclose its exact contents. Hopefully they will do so soon.

Owen

> On May 17, 2022, at 01:11 , Paul Hjul <hjul.paul at gmail.com <mailto:hjul.paul at gmail.com>> wrote:
> 
> "I hope this puts to rest the ongoing debate and clears the way for a
> successful AGMM." 
> Frankly this is the wrong attitude. The defects with the AGMM are varied and your "explanation" misses the simple point. The bylaws envisage that at each AGMM there is an election. At that election the seats that become vacant through term expiry must be held. Also at that AGMM must board filled vacancies be up for election. Also any vacancies that have otherwise arisen must be filled. There is no gap in the bylaws or need to depart from this principle. If a situation where to arise where there is a lack of directors then Mauritius law provides an answer that involves the courts. Following the bylaws does not disrupt the sequencing, the ONLY time sequencing would become an issue is if a person is given a new three year term when filling a vacancy. Basic reading of the bylaws makes it clear that the purpose of the language requiring a preservation of sequencing is to ensure that vacancies are filled to run with the original term. 
> 
> We don't know - because Afrinic have not disclosed - what the court has ordered. What we do know is that the order will impact on the AGMM. We also know that the govcom didn't properly apply it's mind and/or erred in its recommendations and advise. 
> 
> Paul
> 
> 
> [Community-Discuss] Comments from GovCom Communique
> DANIEL NANGHAKA dndannang at gmail.com <http://gmail.com/>
> Tue May 17 05:42:36 UTC 2022
> Previous message: [Community-Discuss] Will the AGMM still be held as scheduled, if not can an SGMM or further information and engagement session be held on those dates?
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> Dear Community,
> 
> I want to thank the community for the comments and suggestions made after
> the Governance Committee published its communique on the recommendations
> made to the AfriNIC Board. GovCom plans to take all the suggestions and
> comments into the next meeting and deliberate on them further. We take note
> of the comments/recommendations made especially by Mr. Folayan and Mr.
> DeLong.
> 
> I would however like to remind the community about the provisions within
> the current By-Laws that lead to the recommendations GovCom made to the
> Board. There only provisions within the current By-Laws that would enable
> a person to be a member of the AfriNIC Board.
> Filling of a Casual Vacancy in pursuit of Article 13.14 of the By-Laws
> Conduct of Elections with a full tenure of three (3) years in pursuit of
> Article 13.5, Article 13.6, and Article 13.7 of the By-Laws
> Either the Board, NomCom, ECom, GovCom, or even Members at an AGMM have the
> power to vary the sequence seats for Directors are elected or the mandated
> 3-year tenure of an elected Director
> The proposals suggested by Mr. Folayan and Mr. DeLong where the Board
> conducts elections out of sequence for certain seats and for the remainder
> of the unexpired term of the seat is likened to a bi-election mechanism.
> Unfortunately, there are no such provisions for bi-elections within the
> current By-Laws 2020. And as such, it would be a clear breach of the
> provisions in the current By-Laws.
> 
> In regards to the Eastern Africa seat, the Board restored the tenure of the
> elected Director to the mandated 3-year term. They were no extensions of
> the tenure as the Board did not have the mandate to reduce the tenure to
> 2-years in the first place.
> 
> I hope this puts to rest the ongoing debate and clears the way for a
> successful AGMM.
> 
> regards,
> 
> Daniel
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